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STATE OF CONNECTICUT v. DEAN BRIAN LEBLANC

(AC 34814)

Beach, Robinson and Sheldon, Js.*

Argued December 9, 2013—officially released March 4, 2014

(Appeal from Superior Court, judicial district of

Hartford, geographical area number twelve, C.

Taylor, J.)

Laila Haswell, assistant public defender, for the

appellant (defendant).

Emily D. Trudeau, special deputy assistant state’s

attorney, with whom, on the brief, were Gail P. Hardy,

state’s attorney, Adam B. Scott, supervisory assistant

state’s attorney, and Alexander Beck, deputy assistant

state’s attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Dean Brian LeBlanc,

appeals from the judgment of conviction rendered

against him after a jury trial on charges of operating a

motor vehicle while under the influence of alcohol in

violation of General Statutes § 14-227a (a) (1) and

operating a motor vehicle while having an elevated

blood alcohol content in violation of § 14-227a (a) (2).

The defendant claims that the trial court erred in denying his motion to suppress evidence regarding his

refusal to perform a field sobriety test and that, in admitting evidence of his refusal, the court violated his constitutional privilege against self-incrimination. We

conclude that even if the challenged evidence was

improperly admitted, its admission was harmless

beyond a reasonable doubt. Accordingly, we affirm the

judgment of the trial court.

On the basis of the testimony and evidence adduced

at trial, the jury reasonably could have found the following facts. On March 22, 2010, Demetria Jackson was

sitting in her car in the parking lot of a strip mall in

South Windsor, waiting to pick up a take-out order that

she had placed with a restaurant in that plaza. When

she exited her vehicle, the defendant walked out of the

adjacent bar and, as he walked to his vehicle, he uttered

an incomprehensible comment. Jackson ignored the

defendant and continued into the restaurant to retrieve

her order, while the defendant proceeded toward the

door of the vehicle parked next to hers.

When Jackson returned to her car, she observed the

defendant still standing next to his vehicle. She smelled

a strong odor of alcohol and observed that the defendant was having difficulty inserting his key into the

door lock of his vehicle. Jackson drove away, stopping

at a point nearby to further observe the defendant.

Concerned that the defendant was about to drive a

vehicle while intoxicated, Jackson called 911. While on

the telephone, she observed the defendant start his

vehicle and begin to drive. She testified that he was not

operating the vehicle in ‘‘a steady movement, but almost

like someone was stepping on the gas and then stepping

on the brake.’’ The defendant continued operating the

vehicle, as if attempting to get to the exit of the parking

lot, but he ‘‘kept turning back around as if he couldn’t

make his way toward the exit . . . almost like the

motion that a figure eight would make.’’ Jackson testified that the defendant ‘‘continued sort of driving . . .

as if he were trying to find the exit or just driving in

the parking lot’’ until another man exited the bar and

approached the defendant’s vehicle. The defendant

stopped and parked his vehicle, and began to converse

with the other man until police Officer Kevin Geraci

arrived.

Upon his arrival at the scene, Geraci noticed that
the defendant’s vehicle was parked crookedly, with its

brake lights on. Geraci activated the emergency lights

on his patrol car, exited the car, and approached the

defendant’s vehicle. As he approached, the defendant’s

brake lights went off. Geraci first asked the other man

who had been speaking with the defendant if he had

been driving. The man stated that he had not been

driving and walked away. Thereafter, when Geraci

walked up to the window of the defendant’s vehicle,

the defendant immediately declared, ‘‘I wasn’t driving.

The keys weren’t in the ignition.’’ At that point, Geraci

had not yet asked the defendant anything. Geraci

smelled a strong odor of alcohol emanating from the

defendant’s vehicle, and therefore asked the defendant

for his driver’s license and vehicle registration. The

defendant responded, ‘‘Why? I wasn’t driving.’’ Geraci

repeated the same request to the defendant about onehalf dozen times, to which, on each occasion, the defendant repeated the same response.

Eventually, Geraci told the defendant to get out of his

vehicle. After the defendant complied with this order,

Geraci conducted what he described as ‘‘a weapon’s

patdown [of the defendant] for safety purposes.’’1

In so

doing, Geraci could smell the strong odor of alcohol

on the defendant’s breath, and thus asked him to take

a field sobriety test. In response, the defendant told

Geraci that he was not driving because he was drunk.

The defendant repeated that he was not driving three

or four times, and further told Geraci that he ‘‘never

left— never drove off the parking lot.’’ Geraci interpreted the defendant’s responses as a refusal to take the

field sobriety test, and therefore placed the defendant

under arrest. Two chemical alcohol tests were later

administered on the defendant, which produced blood

alcohol levels of 0.172 and 0.17, respectively. The defendant was charged with operating a motor vehicle while

under the influence of alcohol in violation of § 14-227a

(a) (1) and operating a motor vehicle while having an

elevated blood alcohol content in violation of § 14-227a

(a) (2).

Prior to trial, on October 17, 2011, the defendant filed

a motion in limine seeking to suppress evidence of the

fact that he had refused to take a field sobriety test.

On March 16, 2012, during the trial, the court excused

the jury and held a hearing on the defendant’s motion.

The sole witness at the hearing was Geraci, who testified to his interaction with the defendant that led to

the defendant’s arrest. His testimony regarding that

interaction was not contested by the defendant in terms

of its factual accuracy. During oral argument on his

motion to suppress, the defendant expanded the scope

of his motion to include a challenge to his earlier statement that he had not been driving. The defendant challenged the admissibility of his refusal to take the field

sobriety test on the legal ground that his refusal and

his statements were testimonial in nature and were
compelled by Geraci, and thus its admission violated

his constitutional privilege against self-incrimination.

The court denied the defendant’s motion and the trial

proceeded.

The defendant was convicted of both charges of

operating under the influence. Following the conviction, the state filed a part B information charging the

defendant as a subsequent offender in violation of § 14-

227a (g) (2), to which the defendant entered a plea

of nolo contendere. The trial court merged the two

operating under the influence counts and sentenced

the defendant to two years incarceration, execution

suspended after 450 days, and three years probation.

After trial, the defendant sought an articulation of the

trial court’s decision denying his motion to suppress.

In response, the court issued an articulation in which

it concluded that the defendant’s refusal to take a field

sobriety test was neither compelled nor testimonial.

This appeal followed.

The defendant claims that the trial court erred in not

suppressing the following: Geraci’s testimony that the

defendant had refused to perform a field sobriety test;

the defendant’s statement, ‘‘Why? I wasn’t driving,’’ in

response to Geraci’s request that he perform a field

sobriety test; and his subsequent admission to Geraci

that he was drunk. The defendant claims that the evidence was improperly admitted because it was testimonial and compelled, and thus obtained in violation of

his constitutional privilege against self-incrimination.

The state disagrees with the defendant, arguing that

the challenged evidence was neither testimonial nor

compelled. It further contends that even if the evidence

was inadmissible, any errorin admitting it into evidence

was harmless beyond a reasonable doubt. We agree

with the state that any error by the trial court in admitting the challenged evidence was harmless beyond a

reasonable doubt.

‘‘[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of

demonstrating that the error was harmful. . . .

[W]hether [the improper admission of a witness’ testimony] is harmless in a particular case depends upon a

number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony

of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the

overall strength of the prosecution’s case. . . . Most

importantly, we must examine the impact of the

[improperly admitted] evidence on the trier of fact and

the result of the trial. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate

court has a fair assurance that the error did not substantially affect the verdict. . . . The harmless error doctrine is rooted in the fundamental purpose of the

criminal justice system, namely, to convict the guilty

and acquit the innocent. . . . Therefore, whether an

error is harmful depends on its impact on the trier of

fact and the result of the case. . . . This court has held

in a number of cases that when there is independent

overwhelming evidence of guilt, a constitutional error

would be rendered harmless beyond a reasonable

doubt. . . . When an [evidentiary] impropriety is of

constitutional proportions, the state bears the burden

of proving that the error was harmless beyond a reasonable doubt. . . . [W]e must examine the impact of the

evidence on the trier of fact and the result of the trial.

. . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered

harmless. . . . That determination must be made in

light of the entire record [including the strength of the

state’s case without the evidence admitted in error].’’

(Citation omitted; internal quotation marks omitted.)

State v. Coccomo, 302 Conn. 664, 716–18, 31 A.3d

1012 (2011).

As noted, the evidence challenged by the defendant

concerned his refusal to take the field sobriety test.

That evidence, however, which he claims violated his

privilege against self-incrimination, is incriminating

only as to his intoxication, not as to whether he operated the vehicle. The evidence of the defendant’s intoxication was abundant. Both Jackson and Geraci testified

that the defendant smelled of alcohol and that his

speech was slurred. The state submitted the results of

two blood alcohol tests taken after the defendant was

arrested, both indicating a blood alcohol level more

than twice the legal limit. Thus, the evidence that the

defendant sought to suppress was cumulative of other

intoxication evidence submitted by the state.

Moreover, the defendant did not contest at trial the

fact that he was intoxicated. He claimed, rather, that

he had not been driving his vehicle, a claim that is

belied by Jackson’s testimony and his own unchallenged statement to Geraci that he never got the car

out of the parking lot. Because the evidence challenged

by the defendant incriminated him only as to intoxication, and his intoxication was not an issue at trial, we

conclude that even if the court improperly admitted the

evidence challenged by the defendant, a question that

we need not reach, the admission of that evidence was

harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The defendant has not challenged the legality of the patdown.